Be aware — and wary — of SLAPP lawsuits

Posting a review on something you’ve bought online has become a regular thing for many people. But what happens if someone doesn’t like your critique? — Internet search image

Do you occasionally post product reviews to Amazon and other sites? If so, choose your words with care — you just might get slapped with a lawsuit for your opinion.It’s known as the Strategic Lawsuit Against Public Participation, or SLAPP for short, and it really is designed to slap down and intimidate those who express controversial opinions.

There have been a number of apparent SLAPP actions in Canada, the most recent being a $7-million lawsuit launched in September 2013 by Resolute Forest Products against Greenpeace, for its criticism of that company’s forestry operations in Canada. The suit, Greenpeace said at the time, is “a typical bullying tactic meant to gag critics and divert attention from important issues.”

That suit was launched in Ontario, despite the fact that Resolute is headquartered and most active in Quebec. The reason? Greenpeace suggests it’s because Quebec amended its legislation in 2009 to allow courts to summarily throw out SLAPP actions. Ontario currently plans to introduce similar legislation of its own, through Bill 83. A majority of states in the U.S. have enacted similar statutes.

In 2011, a Quebec court tossed out a SLAPP suit, brought by Barrick Gold against three authors who had written a book about the company’s mining practices in Africa. In rejecting the suit, the judge said “Barrick seems to be trying to intimidate authors” and that its conduct was “apparently abusive.” So the anti-SLAPP legislation is working in that province.

The ability of a court to review and reject a legal action at its discretion is critical to keeping SLAPP suits to a minimum. Otherwise, an individual, business or organization could be put through the expense and anxiety of fighting a lawsuit against a larger, richer opponent. Even if the suit is frivolous, most defendants can’t afford the fight, and many are forced to retract their comments to make it go away.

So, here’s where the plot thickens and SLAPP tactics descend to the consumer level.

In the U.S., the tech company Mediabridge threatened a person with a lawsuit for writing a critical review of that company’s wireless router. Here’s an excerpt from the letter the individual received from Mediabridge’s lawyer:

“I am writing to you in connection with your illegal campaign to damage, discredit, defame and libel Mediabridge and/or engage in other tortious, wrongful and/or illegal conduct directed against Mediabridge. Mediabridge learned that you made and posted on amazon.com blatantly false, defamatory, libelous and slanderous statements about Mediabridge…”

I don’t know about you, but receiving a letter like that would ruin my week. Standing behind my review would suddenly seem quixotic in the face of such legal action. You can see why most would take their remarks down — as this guy did — rather than get drawn into a legal battle. And that seems to be the intent of SLAPP action: not so much to win, but to intimidate the other party into full retreat. As such, it is a none-too-subtle assault on freedom of speech.

Mandy Woodland is a lawyer and the proprietor of Mandy Woodland Law in St. John’s. In an interview, she said that anti-SLAPP legislation like that introduced in Quebec is the best solution and it seems inevitable that other provinces will grant their courts similar protections.

“It’s pretty well understood that these suits are very detrimental to the general public and generally not used in a legitimate or reasonable way,” she said, adding that the suits had their beginnings largely for legitimate reasons.

“Initially, many people were posting anonymously to be malicious. It wasn’t truthful, it wasn’t factual and people were hiding behind anonymity … for a lot of different reasons that are not reasonable.”

That’s understatement, to be sure. I have seen comments posted by anonymous trolls that were so over-the-top, they actually deserved to be sued. Woodland agreed that this malicious intent is common, “and more so on the Internet where people can very much appear to be anonymous.”

The point of anti-SLAPP legislation is to protect people who are expressing honestly-held, legitimate points of view, whether anonymously or not. And there are steps you can take to avoid such a suit when posting comments online.

“State the facts, tell the truth and, if you have an opinion, make it clear that it is your opinion,” Woodland said. “And don’t make malicious statements. People sometimes think that if they say, ‘in my opinion, someone is taking bribes.’ Well that is not going to protect you from a suit if you have no facts to back that up.”

You can state the facts, and offer fair comment on those facts.

“It’s OK to say negative things. It’s OK to say I had really bad service and here’s what happened, or the food was bad because of so-and-so, or the service I received from this company was poor, or they damaged my suitcase, or whatever — those kind of things are legitimate if they are based on fact. … As long as you express a legitimate opinion and can say, ‘Here’s why I have that opinion,’ without going over the top with it, then you should be prevented from having a decision against you in one of those suits.”

Bottom line: keep stating your point of view, but explain why you feel that way, and don’t say anything malicious. Anonymity will not protect you against a lawsuit if that suit is warranted.

Geoff Meeker is a communications consultant with a soft spot for technology. He also writes a blog about the local media scene, which is hosted at www.thetelegram.com.

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